The Power to Wage War Successfully
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THE POWER TO WAGE WAR SUCCESSFULLY MattheW C. Waxman* A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. In it he uttered his famous axiom that “the power to wage war is the power to wage war successfully.” That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes’s own research notes, this Article examines his 1917 formulation and shows how Hughes pre- sciently applied it to the most pressing war powers issues of its day— namely, a national draft and intrusive federal economic regulation. Though critical to supporting American military operations in Europe, these were primarily questions about Congress’s domestic authority—not the sorts of interbranch issues that naturally come to mind today in thinking about “waging war.” This Article also shows, however, how Hughes struggled unsuccessfully to define when war powers should turn off or revert to peacetime powers. The story of Hughes’s defense of (and later worry about) expansive wartime powers in World War I sheds much light on present constitutional war powers and debates about them, including in the context of indefinite and sweeping wars against transnational terrorist groups. INTRODUCTION ......................................................................................... 614 I. OUR “FIGHTING CONSTITUTION” .......................................................... 622 A. A “Fighting” Constitution........................................................... 624 1. Wartime Powers .................................................................... 628 2. Wartime Delegation.............................................................. 630 3. Wartime Rights ..................................................................... 632 4. A Puzzle: Structural-Process Inflexibility ............................. 633 B. A “Marching” Constitution ........................................................ 638 II. OUR “FIGHTING CONSTITUTION” IN THE FIRST WORLD WAR .............. 641 A. Over There: The National Draft and Expeditionary War Powers.......................................................................................... 643 1. Constitutional Powers of Conscription................................ 644 *. Liviu Librescu Professor of Law, Columbia Law School. I thank the following for comments: Gabriella Blum, Jack Goldsmith, Kevin Grossinger, David M. Kennedy, Andrew Kent, Jeremy Kessler, Marty Lederman, Ian MacDougall, Henry Monaghan, Michael Neiberg, Christina Ponsa, Jeff Powell, Daniel Richman, Brad Snyder, Peter Strauss, and many faculty workshop participants at Columbia Law School and St. John’s Law School. This work was supported by the Hertog Foundation and the Martin and Selma Rosen Research Fund. 613 614 COLUMBIA LAW REVIEW [Vol. 117:613 2. Constitutional Limits on a Conscripted Army..................... 646 B. The Home Front: Economic Regulation and Industrial War Powers.......................................................................................... 649 1. Wartime Regulation.............................................................. 650 2. Wartime Rights ..................................................................... 653 3. Wartime Delegation.............................................................. 655 III. HUGHES AND OUR POSTWAR FIGHTING CONSTITUTION ..................... 658 A. The Cable Seizure Case .............................................................. 661 1. The Undersea Cable Seizure................................................ 661 2. Hughes, Hand, and the Cable Companies’ Suit ................. 663 B. The Uncertainty of “Successful” War......................................... 669 C. The Power to Wage War Successfully After the Great War........ 671 1. The Great Depression, Emergency Powers, and War Powers ................................................................................... 672 2. Waging War Successfully in World War II and Beyond....... 675 CONCLUSION:OUR FIGHTING CONSTITUTION 100 YEARS LATER.............. 680 INTRODUCTION Shortly after 8:00 PM on September 5, 1917, Charles Evans Hughes addressed the participants of the American Bar Association’s annual meeting at Saratoga Casino in Saratoga Springs, New York.1 The former Supreme Court Justice had stepped down from the High Court to run for President in 1916 and narrowly lost the race to incumbent President Woodrow Wilson less than a year earlier.2 Now, Hughes rose to the podium to deliver a powerful legal defense of the Wilson Administration’s controversial wartime actions—actions taken in a global war from which Wilson had only recently campaigned to keep America out.3 Titled “War Powers Under the Constitution,”4 the speech attracted nationwide attention.5 The New York Times covered it on page one; “War Power Ample, Hughes Declares,” ran the headline.6 At this time, the 1. Am. Bar Ass’n, Program of Meeting at Saratoga Springs, N.Y., 3 A.B.A. J. 305, 324 (1917). 2. 1 Merlo J. Pusey, Charles Evans Hughes 315–34, 362 (1951) (detailing the 1916 presidential nomination process and election). 3. See George C. Herring, From Colony to Superpower: U.S. Foreign Relations Since 1776, at 404–07 (2008) (outlining Wilson’s position against American involvement in the war and actions to bring the war to a close). 4. Charles E. Hughes, War Powers Under the Constitution, 40 Ann. Rep. A.B.A., 1917, at 232 [hereinafter Hughes, War Powers Under the Constitution]. 5. Pusey, supra note 2, at 370. 6. War Power Ample, Hughes Declares, N.Y. Times, Sept. 6, 1917, at 1. Other newspapers reported on it at length as well. See, e.g., American Bar Indicts Germany for 2017] THE POWER TO WAGE WAR SUCCESSFULLY 615 United States was five months into its participation in the Great War—a conflict that had already destroyed much of Europe and extended to many other parts of the globe.7 During those short months the United States had built from near scratch a massive army unlike any American force before it. In doing so, the federal government had assumed unpre- cedented powers over American society.8 It was in that address that Hughes famously proclaimed that “[t]he power to wage war is the power to wage war successfully”9—a line that continues to be quoted often by lawyers, judges, and scholars.10 Hughes concluded the speech with rhetorical flourish: It has been said that the constitution marches. That is, there are constantly new applications of unchanged powers, and it is ascertained that in novel and complex situations, the old grants contain, in their general words and true significance, needed and adequate authority. So, also, we have a fighting constitution.11 Yet Hughes’s address was not a political rallying speech.12 It was, rather, a meticulously researched and lawyerly presentation that carefully elaborated these “fighting constitution” principles and assessed the Wilson Administration’s wartime challenges in light of them. No single document from World War I better articulates the consti- tutional war powers framework that prevailed at that time among the legal and political elite and the application of that framework to the most Illegal Acts, N.Y. Trib., Sept. 6, 1917, at 3; German Methods of War Scored, S.F. Chron., Sept. 6, 1917, at 15. The speech was also widely distributed. For example, one major paper reprinted the entire speech in its Sunday opinion page later that week. Charles E. Hughes, War Powers Under the Constitution, St. Louis Post-Dispatch, Sept. 9, 1917, at 1, 11. 7. See John Keegan, The First World War 376–77, 401–02 (1998) (noting that while Wilson initially said America was “too proud to fight,” his view changed after a “succession of diplomatic affronts”); David M. Kennedy, Over Here: The First World War and American Society 3–44 (1980) [hereinafter Kennedy, Over Here] (describing Wilson’s reluctance, from 1914–1916, to enter the war as overcome only by a combination of the Russian Revolution, the Zimmermann telegram, and the German U-boat attacks on U.S. ships). 8. See infra notes 152–155 and accompanying text (describing massive increase in size of military); see also infra notes 206–219 and accompanying text (describing wartime military, economic, and administrative enactments). 9. Hughes, War Powers Under the Constitution, supra note 4, at 238. 10. See infra notes 17–29. 11. Hughes, War Powers Under the Constitution, supra note 4, at 248. 12. In contrast, two days earlier the former Secretary of War and Secretary of State Elihu Root had delivered to the same audience a rousing defense of American efforts to defeat the German menace, including general statements that long-term defense of American democracy would require wartime compromises of peacetime liberties. Give War Alarm, Root Urges Bar, N.Y. Times, Sept. 4, 1917, at 1. Root’s remarks included presenting to the American Bar Association a set of patriotic resolutions. Transactions of the Fortieth Annual Meeting of the American Bar Association, 40 Ann. Rep. A.B.A. 19, 25–26 (1917) (reprinting Root’s statement). 616 COLUMBIA LAW REVIEW [Vol. 117:613 pressing contemporary policy questions13—not questions about entering the war or how to fight it on the battlefield, but about Congress’s power to revamp relations between the national government and citizenry. These domestically focused questions arose both from changes in the nature of warfare and from changes in